Pima College blacked out embarrassing Loughner email

Buried in the 8,500 pages of documents relating to Jared Loughner released Tuesday by Pima Community College is a potentially embarrassing comment the school tried to avoid releasing.

A Jan. 13 email from a Pima instructor to someone outside the school included a comment that Loughner, the accused Jan. 8 shooter, "could just as easily have come back and shot up the school rather than Gabby's event."

That line, and others about an outburst by Loughner before he was expelled from the community college, were blacked out in two other copies of the email in an exchange between Pima biology instructor Jennifer Katcher and a biology professor at another school.

The redacted emails raise questions as to what other documents Pima has withheld, said public records experts.

"There's no reason why that needs to be redacted," said David Cuillier, an associate professor of journalism at the University of Arizona and the national freedom of information chairman for the Society of Professional Journalists.

The school said the fact that one of the emails was not redacted was "inadvertent," and that the information should have been blacked out under federal student privacy laws.

The school said Friday that "this particular email did give us pause during the redaction process and we did consider not redacting the portion that you quoted."

The emails were released along with three other documents, including an order that suspended Loughner from the school last year, that a Pima County judge Monday ordered to be released because they are not covered by privacy rules.

Pima's determination to not release that part of the email "might be related to a fear of a lawsuit" stemming from the college's treatment of Loughner when he was a student, Cuillier speculated.

"But we have no idea what else they've blotted out that should be public," he said.

"If they're hiding that, what else are they hiding?" he said. "It raises alarm bells."

"In my opinion, this is clearly a case of overreach, over-zealous blackouts with a marker," he said.

The college should release as much information on Loughner as possible, Cuillier said.

"The public interest in this case far outweighs his privacy rights," he said.

While it's natural to want to protect an organization from embarrassment, Pima "needs to be upfront and open. People want to know," Cuillier said.

"It creates the suspicion that they're hiding information illegally," he said. "It's a strong accusation, that they're breaking the law, but they've got to prove that they're being open. It appears to me that they're aren't."

"Every document was vetted by counsel," said Paul Schwalbach, a spokesman for PCC, in an interview Thursday.

In a written statement Thursday, Schwalbach said:

We consider the redacted portions (of the emails) to be protected under the Family Education Rights and Privacy Act (FERPA) as information related directly to a student. The redacted material discusses a class that Jared Loughner was taking and describes his behavior on a particular day during the time that he was a student.

The fact that (that email) was not redacted was inadvertent. Many emails were repeated numerous times, and we tried to be consistent in making sure each version was redacted in the same way. Unfortunately, this one slipped by us. In general, the entire redaction process was geared towards making sure we released as much information as reasonably possible.

"They do have to justify what they're not turning over," said attorney Bill Risner, whose involvement in a suit over the 2006 Regional Transportation Authority election makes him no stranger to public records laws.

"In general, they have the burden of demonstrating why they're saying something doesn't have to be turned over," he said.

Public records laws need to be used "so we can find out what the government's up to and help keep them honest," Risner said.

But government officials "try to jerk people around," he said.

"It's natural human stuff" to not want some public records released, he said. "Having someone ferret through your emails, none of us would like it," he said.

After this report was originally posted Thursday afternoon, Schwalbach elaborated the college's stand on the email, writing on Friday:

There is no provision in FERPA that confines protection to only information from an instructor who has "direct responsibility" for a student's education. On the contrary, the definition of education records is broad and includes all records and materials that relate to a student and that are maintained by an educational institution. Having said that, this particular email did give us pause during the redaction process and we did consider not redacting the portion that you quoted [“ . . . he could just as easily have come back and shot up the school rather than Gabby’s event.”]. After additional consideration of the email in its entirety, however, we determined that because the comment appeared to be based on information this instructor had about this student's behavior on a particular day in class, it was proper to redact it. As evidenced by numerous other emails, we did not redact the commentary and suppositions of Pima employees who were commenting generally in response to the horrific acts of this former student. We agree that general ruminations and opinions about  Loughner are not protected by FERPA. Our goal was only to redact information directly related to Loughner as a student.

Email: 'Frightening to realize how close we were to this disaster'

In a response to an email from a professor at Fullerton College, Katcher wrote, in part:

Thanks for thinking of me. Monday was such a surreal day and each day has its own challenges and surprises. It is so frightening to realize how close we were to this disaster - the last class the shooter was removed from was biology. His class was in the same classroom that I use and met immediately before one of my classes. His teacher is a good friend of mine and I remember the day she had to call 911. He was upset with her and he could just as easily have come back and shot up the school rather than Gabby's event.

(See pages 1580-1584 of the redacted emails.)

The words after "the last class the shooter was removed from was biology" were blacked out in two copies that were included in responses by Katcher later in the email exchange.

The information redacted from Katcher's email, other than the "what-if" possibility, has long been public knowledge; much of it was contained in a police report and other emails released earlier by PCC.

The blackouts were included in a log of redacted and withheld documents released by the school.

While records at Pima are nominally public and open to inspection by anyone, exceptions include confidential communications with lawyers, students records under federal privacy laws, and purely personal communications, Schwalbach said.

In the log of black-outs are listed over 1400 emails redacted because they contain personal communciations, 240 emails with college attorneys, hundreds relating to other students and over 730 pages with information on Loughner's stint at Pima that were redacted by the college.

"The bottom line is, clearly this is not what FERPA intended to be kept secret," said Cuillier.

"They may have good intentions, they may be trying to protect themselves," said Cuillier.

The information will likely be released if there is a lawsuit over Pima's handling of Loughner, Cuillier said.

"FERPA is no barrier to disclosure during a lawsuit. All of this is going to come out anyway" if there is a suit, he said.

"Jared Loughner is a public figure now," he said. "Privacy is pretty much a nonissue at this point."

Pima has released about 19,000 pages of documents and emails related to Loughner and the school's reaction after the Jan. 8 shooting. Many of the documents contain duplicates as college staff replied to inquiries and forwarded emails to other staffers. Many others are automatically emailed news alerts from media organizations.

A review of the 8,500 pages released Tuesday by Sentinel reporter A.J. Flick found the discrepancy in the redactions.

Loughner was suspended from Pima in fall 2010 because of a pattern of erratic behavior.

He was asked to leave the school on Sept. 30, after an instructor called campus police on Sept. 23 because Loughner was causing a disturbance in her class. School officials also discovered a disturbing YouTube video posted by Loughner calling Pima a "genocide school."

6 killed, 13 wounded

Loughner, 22, is accused of killing six, including a nine-year-old girl, and shooting U.S. Rep. Gabrielle Giffords in the head in what authorities charge was an assassination attempt.

He also is charged with wounding 12 others at the "Congress On Your Corner" meet and greet with constituents at a Northwest Side grocery store on the morning of Jan. 8.

He was found incompetent to stand trial in May, and was sent to a federal facility in Missouri for treatment to restore his ability to understand the charges against him and participate in his defense.

A federal appeals court ruled Tuesday that prison officials can't force Loughner to take psychotropic drugs until the court hears further arguments.

The ruling by the Ninth Circuit Court of Appeals maintains an earlier order that temporarily halted the forced medication of Loughner.

The court said that because Loughner has not been convicted, he is entitled to greater constitutional protections than a convicted inmate. The order, by a three-judge panel, rejected claims by the government that Loughner is a danger to himself.

In March, Loughner was charged with 49 federal counts in the attack. Not guilty pleas were entered on his behalf by the court.

Fourteen of the charges Loughner faces could result in the death penalty, if the prosecution seeks it. No decision of whether to ask for capital punishment has been made, authorities have said.

Loughner likely will face local charges in the shooting incident, authorities have said, but only after the federal case is resolved.